Introduced Version






HOUSE BILL No. 1329

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 22-4.

Synopsis: Charging of employer unemployment experience accounts. Provides that after December 31, 2013, unemployment benefits paid to an eligible individual are charged to the experience or reimbursable account of the separating employer. (Currently, benefits are charged proportionately to the experience or reimbursable accounts of the individual's base period employers in reverse chronological order.)

Effective: July 1, 2013.





Hamm, Harman, Ziemke




    January 17, 2013, read first time and referred to Committee on Employment, Labor and Pensions.







Introduced

First Regular Session 118th General Assembly (2013)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2012 Regular Session of the General Assembly.

HOUSE BILL No. 1329



    A BILL FOR AN ACT to amend the Indiana Code concerning labor and safety.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 22-4-5-1; (13)IN1329.1.1. -->     SECTION 1. IC 22-4-5-1, AS AMENDED BY P.L.2-2011, SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 1. (a) "Deductible income" wherever used in this article, means income deductible from the weekly benefit amount of an individual in any week, and shall include, but shall not be limited to, any of the following:
        (1) Remuneration for services from employing units, whether or not such remuneration is subject to contribution under this article, except as provided in subsection (c).
        (2) Dismissal pay.
        (3) Vacation pay.
        (4) Pay for idle time.
        (5) Holiday pay.
        (6) Sick pay.
        (7) Traveling expenses granted to an individual by an employing unit and not fully accounted for by such individual.
        (8) Net earnings from self-employment.
        (9) Payments in lieu of compensation for services.
        (10) Awards by the national labor relations board of additional pay, back pay, or for loss of employment, or any such payments made under an agreement entered into by an employer, a union, and the National Labor Relations Board.
        (11) Payments made to an individual by an employing unit pursuant to the terms of the Fair Labor Standards Act (Federal Wage and Hour Law, 29 U.S.C. 201 et seq.).
        (12) This subdivision applies to initial claims for unemployment filed for a week that begins after March 14, 2008, and before October 1, 2011. For a week in which a payment is actually received by an individual, payments made by an employer to an individual who accepts an offer from the employer in connection with a layoff or a plant closure.
        (13) This subdivision applies to initial claims for unemployment filed for a week that begins after March 14, 2008, and before October 1, 2011. Except as provided in subsection (c)(2), the part of a payment made by an employer to an individual who accepts an offer from the employer in connection with a layoff or a plant closure if that part is attributable to a week and the week:
            (A) occurs after an individual receives the payment; and
            (B) was used under the terms of a written agreement to compute the payment.
    (b) Deductible income shall not include the first three dollars ($3), or twenty percent (20%) of the claimant's weekly benefit amount rounded to the next lowest dollar, whichever is the larger, of remuneration paid or payable to an individual with respect to any week by other than the individual's:
         (1) base period employer or employers, before January 1, 2014; or
        (2) separating employer, after December 31, 2013.

    (c) For the purpose of deductible income only, remuneration for services from employing units does not include:
        (1) bonuses, gifts, or prizes awarded to an employee by an employing unit; or
        (2) for initial claims for unemployment filed for a week that begins after March 14, 2008, and before October 1, 2011, compensation made under a valid negotiated contract or agreement in connection with a layoff or plant closure, without regard to how the compensation is characterized by the contract or agreement.
    (d) Deductible income does not include a supplemental

unemployment insurance benefit made under a valid negotiated contract or agreement.
    (e) Deductible income does not include any payments made to an individual by a court system under a summons for jury service.

SOURCE: IC 22-4-11-1; (13)IN1329.1.2. -->     SECTION 2. IC 22-4-11-1, AS AMENDED BY P.L.175-2009, SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 1. (a) For the purpose of charging employers' experience or reimbursable accounts with regular benefits paid subsequent to July 3, 1971, and before January 1, 2014, to any eligible individual but except as provided in IC 22-4-22 and subsection (f), (g), such benefits paid shall be charged proportionately against the experience or reimbursable accounts of the individual's employers in the individual's base period (on the basis of total wage credits established in such base period) against whose accounts the maximum charges specified in this section shall not have been previously made. Such charges shall be made in the inverse chronological order in which the wage credits of such individuals were established. However, when an individual's claim has been computed for the purpose of determining the individual's regular benefit rights, maximum regular benefit amount, and the proportion of such maximum amount to be charged to the experience or reimbursable accounts of respective chargeable employers in the base period, the experience or reimbursable account of any employer charged with regular benefits paid shall not be credited or recredited with any portion of such maximum amount because of any portion of such individual's wage credits remaining uncharged at the expiration of the individual's benefit period. The maximum so charged against the account of any employer shall not exceed twenty-eight percent (28%) of the total wage credits of such individual with each such employer with which wage credits were established during such individual's base period. After December 31, 2013, regular benefits paid to an eligible individual shall be charged to the experience or reimbursable account of the separating employer only.
    (b)
Benefits paid under provisions of IC 22-4-22-3 in excess of the amount that the claimant would have been monetarily eligible for under other provisions of this article shall be paid from the fund and not charged to the experience account of any employer. This exception shall not apply to those employers electing to make payments in lieu of contributions who shall be charged for the full amount of regular benefit payments and the part of benefits not reimbursed by the federal government under the Federal-State Extended Unemployment Compensation Act of 1970 that are attributable to service in their

employ. Irrespective of Notwithstanding the twenty-eight percent (28%) maximum limitation provided for in this section, subsection for benefits charged before January 1, 2014, the part of benefits not reimbursed by the federal government under the Federal-State Extended Unemployment Compensation Act of 1970 paid to an eligible individual based on service with a governmental entity of this state or its political subdivisions shall be charged to the experience or reimbursable accounts of the employers before January 1, 2014, and to the experience or reimbursable account of the separating employer after December 31, 2013, and the part of benefits not reimbursed by the federal government under the Federal-State Extended Unemployment Compensation Act of 1970 paid to an eligible individual shall be charged to the experience or reimbursable accounts of the individual's employers in the individual's base period, other than governmental entities of this state or its political subdivisions, in the same proportion and sequence as are provided in this section for regular benefits paid before January 1, 2014, and to the experience or reimbursable accounts of the separating employer, other than governmental entities of the state or its political subdivisions, in the same manner as regular benefits paid after December 31, 2013. Additional benefits paid under IC 22-4-12-4(c) and benefits paid under IC 22-4-15-1(c)(8) shall:
        (1) be paid from the fund; and
        (2) not be charged to the experience account or the reimbursable account of any employer.
    (b) (c) This subsection applies to benefits charged before January 1, 2014. If the aggregate of wages paid to an individual by two (2) or more employers during the same calendar quarter exceeds the maximum wage credits (as defined in IC 22-4-4-3) then the experience or reimbursable account of each such employer shall be charged in the ratio which the amount of wage credits from such employer bears to the total amount of wage credits during the base period.
    (c) (d) This subsection applies to benefits charged before January 1, 2014. When wage records show that an individual has been employed by two (2) or more employers during the same calendar quarter of the base period but do not indicate both that such employment was consecutive and the order of sequence thereof, then and in such cases it shall be deemed that the employer with whom the individual established a plurality of wage credits in such calendar quarter is the most recent employer in such quarter and its experience or reimbursable account shall be first charged with benefits paid to

such individual. The experience or reimbursable account of the employer with whom the next highest amount of wage credits were established shall be charged secondly and the experience or reimbursable accounts of other employers during such quarters, if any, shall likewise be charged in order according to plurality of wage credits established by such individual.
    (d) (e) Except as provided in subsection (f), (g), if an individual:
        (1) voluntarily leaves an employer without good cause in connection with the work; or
        (2) is discharged from an employer for just cause;
wage credits earned with the employer from whom the employee has separated under these conditions shall be used to compute the claimant's eligibility for benefits, but charges based on such wage credits shall be paid from the fund and not charged to the experience account of any employer. However, this exception shall not apply to those employers who elect to make payments in lieu of contributions, who shall be charged for all benefit payments which are attributable to service in their employ.
    (e) (f) Any nonprofit organization which elects to make payments in lieu of contributions into the unemployment compensation fund as provided in this article is not liable to make the payments with respect to the benefits paid to any individual whose base period wages include wages for previously uncovered services as defined in IC 22-4-4-4, nor is the experience account of any other employer liable for charges for benefits paid the individual to the extent that the unemployment compensation fund is reimbursed for these benefits pursuant to Section 121 of P.L.94-566. Payments which otherwise would have been chargeable to the reimbursable or contributing employers shall be charged to the fund.
    (f) (g) If an individual:
        (1) earns wages during the individual's base period through employment with two (2) or more employers concurrently;
        (2) is separated from work by one (1) of the employers for reasons that would not result in disqualification under IC 22-4-15-1; and
        (3) continues to work for one (1) or more of the other employers after the end of the base period and continues to work during the applicable benefit year on substantially the same basis as during the base period;
wage credits earned with the base period employers shall be used to compute the claimant's eligibility for benefits, but charges based on the wage credits from the employer who continues to employ the individual shall be charged to the experience or reimbursable account of the

separating employer.
    (g) (h) Subsection (f) (g) does not affect the eligibility of a claimant who otherwise qualifies for benefits nor the computation of benefits.
    (h) (i) Unemployment benefits paid shall not be charged to the experience account of a base period or separating employer when the claimant's unemployment from the employer was a direct result of the condemnation of property by a municipal corporation (as defined in IC 36-1-2-10), the state, or the federal government, a fire, a flood, or an act of nature, when at least fifty percent (50%) of the employer's employees, including the claimant, became unemployed as a result. This exception does not apply when the unemployment was an intentional result of the employer or a person acting on behalf of the employer.

SOURCE: IC 22-4-11-3; (13)IN1329.1.3. -->     SECTION 3. IC 22-4-11-3, AS AMENDED BY P.L.6-2012, SECTION 154, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 3. (a) The applicable schedule of rates for calendar years before January 1, 2011, shall be determined by the ratio resulting when the balance in the fund as of the determination date is divided by the total payroll of all subject employers for the immediately preceding calendar year. Schedule A, B, C, or D, appearing on the line opposite the fund ratio in the schedule below, shall be applicable in determining and assigning each employer's contribution rate for the calendar year immediately following the determination date. For the purposes of this subsection, "total payroll" means total remuneration reported by all contributing employers as required by this article and does not include the total payroll of any employer who elected to become liable for payments in lieu of contributions (as defined in IC 22-4-2-32). For the purposes of this subsection, "subject employers" means those employers who are subject to contribution.
FUND RATIO SCHEDULE

When the Fund Ratio Is:
            Applicable
    As Much As     But Less Than     Schedule
         1 .0%    A
    1 .0%    1 .5%    B
    1 .5%    2 .25%    C
    2 .25%        D
    (b) Except as provided in subsection (c), the applicable schedule of rates for calendar years after December 31, 2010, shall be determined by the ratio resulting when the balance in the fund as of the determination date is divided by the total payroll of all subject

employers for the immediately preceding calendar year. Schedules A through I appearing on the line opposite the fund ratio in the schedule below are applicable in determining and assigning each employer's contribution rate for the calendar year immediately following the determination date. For purposes of this subsection, "total payroll" means total remuneration reported by all contributing employers as required by this article and does not include the total payroll of any employer who elected to become liable for payments in lieu of contributions (as defined in IC 22-4-2-32). For purposes of this subsection, "subject employers" means those employers who are subject to contribution.

FUND RATIO SCHEDULE

When the Fund Ratio Is:
            Applicable
    As Much As     But Less Than     Schedule
         0 .2%    A
    0 .2%    0 .4%    B
    0 .4%    0 .6%    C
    0 .6%    0 .8%    D
    0 .8%    1 .0%    E
    1 .0%    1 .2%    F
    1 .2%    1 .4%    G
    1 .4%    1 .6%    H
    1 .6%         I
    (c) For calendar years 2011 through 2020, Schedule E applies in determining and assigning each employer's contribution rate.
    (d) Any adjustment in the amount charged to any employer's experience account made subsequent to the assignment of rates of contributions for any calendar year shall not operate to alter the amount charged to the experience accounts of:
         (1) any other base-period employers, before January 1, 2014; or
        (2) any other separating employer, after December 31, 2013.

SOURCE: IC 22-4-17-2; (13)IN1329.1.4. -->     SECTION 4. IC 22-4-17-2, AS AMENDED BY P.L.42-2011, SECTION 41, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 2. (a) When an individual files an initial claim, the department shall promptly make a determination of the individual's status as an insured worker in a form prescribed by the department. A written notice of the determination of insured status shall be furnished to the individual promptly. Each such determination shall be based on and include a written statement showing the amount of wages paid to the individual for insured work by each employer during the individual's base period and shall include a finding as to whether such

wages meet the requirements for the individual to be an insured worker, and, if so, the week ending date of the first week of the individual's benefit period, the individual's weekly benefit amount, and the maximum amount of benefits that may be paid to the individual for weeks of unemployment in the individual's benefit period. For the individual who is not insured, the notice shall include the reason for the determination. Unless the individual, within ten (10) days after such determination was mailed to the individual's last known address, or otherwise delivered to the individual, asks a hearing thereon before an administrative law judge, such determination shall be final and benefits shall be paid or denied in accordance therewith.
    (b) The department shall promptly furnish:
         (1) before January 1, 2014, to each employer in the base period; or
         (2) after December 31, 2014, to the separating employer;
whose experience or reimbursable account is potentially chargeable with benefits to be paid to such individual with a notice in writing of the employer's benefit liability. The notice shall contain the date, the name and Social Security account number of the individual, the ending date of the individual's base period, and the week ending date of the first week of the individual's benefit period. For a notice sent before January 1, 2014, the notice shall further contain information as to the proportion of benefits chargeable to the employer's experience or reimbursable account in ratio to the earnings of such individual from such employer. Unless the employer within ten (10) days after such notice of benefit liability was mailed to the employer's last known address, or otherwise delivered to the employer, asks a hearing thereon before an administrative law judge, such determination shall be final and benefits paid shall be charged in accordance therewith.
    (c) An employing unit, including an employer, having knowledge of any facts which may affect an individual's eligibility or right to waiting period credits or benefits, shall notify the department of such facts within ten (10) days after the mailing of notice that a former employee has filed an initial or additional claim for benefits on a form prescribed by the department.
    (d) If, after the department determines that additional information is necessary to make a determination under this chapter:
        (1) the department makes a request in writing for additional information from an employing unit, including an employer, on a form prescribed by the department; and
        (2) the employing unit fails to respond within ten (10) days after the date the request is mailed to the employing unit;


the department shall make a decision with the information available.
    (e) If:
        (1) an employer appeals an original determination granting benefits to a claimant and the determination is reversed on appeal; and
        (2) the decision to reverse the determination is at least in part based on information that the department requested from the employer under subsection (d), but which the employer failed to provide within ten (10) days after the department's request was mailed to the employer;
the employer's experience account shall be charged an amount equal to fifty percent (50%) of the benefits paid to the employee to which the employee was not entitled and for which the employer's experience account may be charged.
    (f) If:
        (1) the employer's experience account is charged under subsection (e); and
        (2) the employee repays all or a part of the benefits on which the charge under subsection (e) is based;
the employer shall receive a credit to the employer's experience account that is equal to the amount of the employee's repayment up to fifty percent (50%) of the amount charged to the employer's experience account under subsection (e).
    (g) In addition to the foregoing determination of insured status by the department, the deputy shall, throughout the benefit period, determine the claimant's eligibility with respect to each week for which the claimant claims waiting period credit or benefit rights, the validity of the claimant's claim therefor, and the cause for which the claimant left the claimant's work, or may refer such claim to an administrative law judge who shall make the initial determination with respect thereto in accordance with the procedure in section 3 of this chapter.
    (h) In cases where the claimant's benefit eligibility or disqualification is disputed, the department shall promptly notify the claimant and the employer or employers directly involved or connected with the issue raised as to the validity of such claim, the eligibility of the claimant for waiting period credit or benefits, or the imposition of a disqualification period or penalty, or the denial thereof, and of the cause for which the claimant left the claimant's work, of such determination and the reasons thereof.
    (i) Except as otherwise hereinafter provided in this section regarding parties located in Alaska, Hawaii, and Puerto Rico, unless the claimant or such employer, within ten (10) days after the notification required

by subsection (h), was mailed to the claimant's or the employer's last known address or otherwise delivered to the claimant or the employer, asks for a hearing before an administrative law judge thereon, such decision shall be final and benefits shall be paid or denied in accordance therewith.
    (j) For a notice of disputed administrative determination or decision mailed or otherwise delivered to the claimant or employer either of whom is located in Alaska, Hawaii, or Puerto Rico, unless the claimant or employer, within fifteen (15) days after the notification required by subsection (h), was mailed to the claimant's or employer's last known address or otherwise delivered to the claimant or employer, asks for a hearing before an administrative law judge thereon, such decision shall be final and benefits shall be paid or denied in accordance therewith.
    (k) If a claimant or an employer requests a hearing under subsection (i) or (j), the request therefor shall be filed with the department in writing within the prescribed periods as above set forth in this section and shall be in such form as the department may prescribe. In the event a hearing is requested by an employer or the department after it has been administratively determined that benefits should be allowed to a claimant, entitled benefits shall continue to be paid to said claimant unless said administrative determination has been reversed by a due process hearing. Benefits with respect to any week not in dispute shall be paid promptly regardless of any appeal.
    (l) A person may not participate on behalf of the department in any case in which the person is an interested party.
    (m) Solely on the ground of obvious administrative error appearing on the face of an original determination, and within the benefit year of the affected claims, the commissioner, or a representative authorized by the commissioner to act in the commissioner's behalf, may reconsider and direct the deputy to revise the original determination so as to correct the obvious error appearing therein. Time for filing an appeal and requesting a hearing before an administrative law judge regarding the determinations handed down pursuant to this subsection shall begin on the date following the date of revision of the original determination and shall be filed with the commissioner in writing within the prescribed periods as above set forth in subsection (c).
    (n) Notice to the employer and the claimant that the determination of the department is final if a hearing is not requested shall be prominently displayed on the notice of the determination which is sent to the employer and the claimant.
    (o) If an allegation of the applicability of IC 22-4-15-1(c)(8) is made by the individual at the time of the claim for benefits, the department

shall not notify the employer of the claimant's current address or physical location.

SOURCE: IC 22-4-19-13; (13)IN1329.1.5. -->     SECTION 5. IC 22-4-19-13 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 13. (a) Where an employer makes an offer of employment directly to a claimant, promptly giving written notice to the department of such offer, or when any such employer makes such offer of employment in writing through the department, the commissioner, the deputy, or an authorized representative of the state or the United States employment service, which offer shall specify such claimant by name, and when such claimant thereafter fails to register subsequent to the receipt of such offer of employment by the department, the commissioner, the deputy, or an authorized representative of the state or the United States employment service, then a notice in writing shall promptly be mailed to such employer of such claimant's said failure to return and to register. If such claimant thereafter, in the claimant's benefit period, again registers or renews and continues the claimant's claim for benefits, such employer shall promptly be mailed notice of such fact in order that the employer may have an opportunity to renew and remake an offer of employment to such claimant.
    (b) Upon the filing by an individual of an additional claim for benefits, a notice in writing or a carbon copy of such additional claim shall be mailed promptly to:
         (1) the:
             (A) base period employer or employers, for a notice sent before January 1, 2014; or
            (B) separating employer for the individual's initial claim for benefits, for a notice sent after December 31, 2013;
and to
         (2) the employing unit, including an employer from whose employ the individual claims to have been last separated.
    (c) Upon the filing by an individual of an initial claim for benefits, a notice in writing or a carbon copy of such initial claim shall be mailed promptly to the employing unit including an employer from whose employ the individual claims to have been last separated. The computation of the benefit rights of such individual shall be made as promptly as possible and, if such claim is deemed valid, then a notice of benefit liability shall be mailed to each employer whose experience account is potentially chargeable with benefits to be paid to such individual. Such notice shall contain the date, the name and Social Security number of the individual, the ending date of the individual's base period, and the week ending date of the first week of the

individual's benefit year. Such notice shall further contain information as to the proportion of benefits chargeable to the employer's experience account in ratio to the earnings of such individual from such employer and shall advise such employer of the employer's right to protest such claim and the payment of any benefits thereon and of the place and time within which protest must be made and the form and contents thereof.
    (d) Whenever a determination is made with respect to the validity of any claim for benefits, or the eligibility of any claimant for benefits, which involves the cancellation of wage credits or benefit rights, the imposition of any disqualification, period of ineligibility or penalty, or the denial thereof, a notice in writing shall promptly be mailed to such claimant and to each employer directly involved or connected with the issue raised as to the validity of such claim, the eligibility of such claimant for benefits, or the imposition of a disqualification period of ineligibility or penalty, or the denial thereof. Such employer or such claimant may protest any such determination within such time limits and in such manner as provided in IC 22-4-17-2 and upon said protest shall be entitled to a hearing as provided in IC 22-4-17-2 and IC 22-4-17-3.
    (e) Every employer shall be mailed a monthly report of benefit charges which shall contain an itemized statement showing the names of individuals to whom benefits were paid and charged to the experience account of such employer, the weeks with respect to which each such individual received benefits, the amount thereof, and the total amount of benefits charged to such employer's said account during the period covered by such report.
    (f) Following the computation of rates of contribution for employers for each calendar year, each employer shall be mailed not later than ninety (90) days after the effective date of such rates a notice in writing setting out the employer's rate of contribution for such year, computed by the department as of the preceding June 30, together with sufficient information for such employer to determine and compute the amount of a voluntary payment required from such employer in order to qualify for and obtain a lower rate of contribution for such year and also advising such employer of the length of time within which or last date upon which said voluntary payment will be received or can be made.